Workplace Harassment or Discrimination: Confidentiality Clauses

The Government have today published a consultation on measures to tackle misuse of confidentiality clauses in situations of workplace harassment or discrimination. These proposals will boost understanding among workers and employers of their rights and legal responsibilities and is part of our modern industrial strategy to create a fairer workplace.

There is increasing evidence that confidentiality clauses are being abused by a minority of employers to intimidate victims and conceal harassment and discrimination in the workplace—including sexual assault, physical threats and racism. This is unacceptable. Today’s proposed reforms will help put an end to the unethical use of these agreements and encourage good practice from employers and lawyers. This includes:

Legislating that confidentiality clauses cannot prevent any disclosure to the police.

Requiring a clear description of the limits of confidentiality provisions within a written statement of employment particulars (in the case of confidentiality clauses in employment contracts) or within settlement agreements.

Extending the law that means a worker agreeing to a settlement agreement receives independent advice, by specifying that the advice must cover the limits of any confidentiality clauses in the settlement agreement.

Most businesses legitimately use non-disclosure agreement and confidentiality clauses in agreements to prevent the disclosure of confidential information. In addition, settlement agreements are often utilised to help resolve workplace disputes without the need to escalate matters further.

However, a minority abuse their power in the workplace to conceal victims of harassment or discrimination through NDAs or confidentiality clauses. For example, by suggesting that a worker cannot “blow the whistle”, despite the fact that no provision can remove a worker’s whistleblowing protections.

In addition, through an NDA or settlement agreement, employers could insist that a worker is unable to discuss an issue with other people or organisations, such as the police, a doctor or a therapist. This can leave victims afraid to report an incident or speak out about their experiences, leaving others exposed to similar situations, and putting customers and other businesses at risk. The proposals set out today will help end this unethical practice, through extending the requirement to receive independent advice to cover limits on confidentiality clauses, and by requiring that signatories must be provided with a clear overview of their rights.

Our modern industrial strategy is creating a fairer and more equal workplace, to boost productivity and earning power for all. Our proposals support this by helping to create a more level playing field between workers and employers, providing more understanding over rights and legal responsibilities.